Question: Is it true that my company can be liable for age discrimination because we advertise job openings online?
Answer: Employers may be liable for discrimination, including age discrimination, during the employee recruiting process. California and federal law prohibit discrimination in employment against applicants and employees age 40 and older. Age discrimination claims can arise when there is an adverse action taken against an employee based on age, or when an employer has an employment practice that appears neutral but has an adverse impact on applicants or employees age 40 and older, and such practice cannot be justiﬁed by business necessity.
Age discrimination may happen inadvertently when employers rely on recruiting methods that are skewed toward or specifically directed to younger workers. For this reason, employers should be mindful when posting job openings. For example, Verizon allegedly placed an ad on Facebook to recruit applicants for jobs related to financial planning and analysis. The ad ran on the Facebook feeds of users 25 to 36 years old who lived in Washington D.C., or had recently visited there, and had indicated an interest in finance. As a result, a vast majority of the hundreds of millions of people who check Facebook every day never saw the ad. A recent investigation by ProPublica and The New York Times of employers, including Amazon, Goldman Sachs, and Target, revealed recruitment ads on Facebook that were similarly limited to particular age groups. This practice has companies like Amazon and T-Mobile facing lawsuits charging that they discriminate against older workers. A lawsuit against T-Mobile alleges that it used Facebook ads to recruit applicants for retail stores and other positions, stating in its ads that it wanted to reach people ages 18 to 38. Amazon also allegedly placed job ads on Facebook that restricted who could see them, such as people “ages 18-54,” “ages 18 to 50,” “ages 28 to 55,” and “ages 22 to 40,” thereby eliminating potential applicants based on age. The lawsuit against Amazon claims that such advertising, while appearing neutral, has an adverse impact on applicants age 40 and older.
Employers can minimize liability for age discrimination by using a variety of recruiting methods and providing more than one way to apply for jobs. Employers should avoid using targeted ads and language that are limited to narrow groups of potential applicants, and be cautious about the information gathered during the application process. California law prohibits employers from requesting, either verbally or through an application form, information about an applicant’s age. In general, employers should limit requests for information during the pre-employment process to those details essential to determining a person’s qualifications to do the job. It is acceptable to ask applicants if they meet minimum legal age requirements and to require proof of age after hire. However it is not acceptable to ask questions that would otherwise reveal age. For example, instead of using words like “digital native” or “recent graduate” in a job ad, simply describe the skills needed for the job. And although it is appropriate to ask for an applicant’s educational background, “what year did you graduate” is a question that should be avoided.
For more information, the Department of Fair Employment and Housing publishes a fact sheet describing permissible preemployment inquiries, which is available online at www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/DFEH_PEI-Guidelines.pdf.